Public Safety Advocate September 22, 2016

Thu Sep 22 18:42:10 2016

Alabama’s RFP

It certainly appears as though the same computer that produced the RFP for the state of New Hampshire also produced the most recent RFP issued by Alabama. To give Alabama some credit, it did try to head off any preconceived ideas that it plans to opt out, but the RFP is written in such a way that if it exercises its contract rights it thinks it will be receiving the secondary revenue from use of the band 14 spectrum and that 700-MHz LMR spectrum will either be turned into more broadband spectrum or, according to the RFP, the spectrum could be leased out and fees charged for its use by the Public Safety community. (The full RFP can be downloaded here: http://www.alea.gov/Home/wfContent.aspx?ID1=plhHomePage-RequestForProposal )

The RFP Section 3.1.1 states the following about spectrum lease payments:

“The Spectrum Act does not require states to return the profits from any such spectrum leases to FirstNet. Rather, the Spectrum Act explicitly authorizes states to use “revenue gained by the State from such a leasing arrangement” for the purpose of “constructing, maintaining, operating, or improving the radio access network of the State.” Id. § 6302(g)(2).

The Spectrum Act does not explicitly authorize states to collect network user fees from the Public Safety users of their state PSBNs or to collect lease fees from entities seeking access to the state’s PSBN equipment or infrastructure (although it does authorize FirstNet to do so with respect to the nationwide PSBN, see id. § 6208(a)(1), (3)). However, the Spectrum Act also does not prohibit states from collecting network use or lease fees, or from reinvesting revenue generated by such fees back into the state’s PSBN. Nothing in the Spectrum Act appears to require states to remit such revenues to FirstNet.” [emphasis mine]

In Section 3.1.2 700 MHz Public Safety Narrowband Spectrum, it states

“Regardless of whether a state opts into FirstNet, a state, local government, or eligible nongovernmental organization (“NGO”) may also retain for their use any revenues generated from their operation of a public safety network using the 12 MHz of dedicated narrowband frequencies.

Other than authorizing the Federal Communications Commission (“Commission”) to allow “flexible use” of the 12 MHz of 700 MHz narrowband public safety spectrum (769-775 MHz, 799-805 MHz) “subject to such technical and interference protection measures as the Commission may require,” id. § 6102, and encouraging research into interoperability between 700 MHz broadband and narrowband networks, see id. § 6303(b)(2), (5), the Spectrum Act makes no mention of these narrowband frequencies. The Spectrum Act therefore does not restrict in any way the operations of 700 MHz public safety narrowband licensees, the manner in which they choose to collect revenue, or how they elect to use such revenue. [emphasis mine] Moreover, neither the authorizing statute for narrowband public safety services (47 U.S.C. § 337) nor the FCC’s rules for narrowband operations (47 C.F.R. § 90.521 et seq.) impose restrictions on the collection or use of revenues associated with the operation of public safety narrowband networks, other than to require that licensees may not make public safety services commercially available to the public.”

It would be interesting to find out whose attorneys came up with both sets of wording above.

By release of the RFP, the states of New Hampshire and Alabama are basically saying that if they opt out what is theirs is theirs and won’t be part of the shared pot of money necessary to make FirstNet a reality nationwide.

Further, both states appear to be willing to throw 700-MHz LMR interoperability, national, and regional mutual aid channels out the door for the sake of additional revenue. It is apparent, at least to me, that whomever is behind the scenes orchestrating these recent RFPs is not a friend of the Public Safety community or taking the best interests of the Public Safety community into consideration.

If a few more of these RFPs hit the street, the entire premise on which FirstNet was created by the federal government, as well as the vitally important 700-MHz LMR spectrum allocations, could be in jeopardy.

After all the hard work that so many people have put into FirstNet with and without compensation because it was the right thing to do, it is, frankly, disheartening to read an RFP such as the Alabama one and see that the intention is not to provide what Public Safety wants and needs so badly but to simply make money for the contractor and the state.

FirstNet cannot survive unless there is a pool of funding from the areas where there will be a demand for secondary spectrum use that can offset the lack of income in a number of other areas of the United States. If each state is to be only about each state, I frankly don’t see how this is going to work. What really intrigues me with both of these states’ RFPs is that our work in identifying where the network deficits will be show both New Hampshire and Alabama high on the list. It seems ironic that states that would be helped the most by neighboring states that will have demand for the spectrum have been led to believe there is a golden goose within their own state.

FirstNet needs the support of every state and every major metro area if it is to be successful, stand on its own feet, and also return a profit for the partner that is willing to invest billions in the build-out and operation.

I don’t have any issues with a state issuing an RFI or even an RFP for building the Radio Access Network portion of FirstNet. It is really good that states want to be able to compare what the FirstNet/vendor proposal is for their state with information they have collected from vendors on their own. One thing I fail to understand about issuing an RFP and then awarding a contract before a state even knows who the FirstNet partner is and what the State Plan will look like, is basically reducing itself to only two choices: opt in or opt out. However, when opting out, the choice of a vendor is a foregone conclusion.

I think the smart move would be to issue an RFI and be prepared to make a decision based on factual numbers without committing to a specific vender until the FirstNet/vendor State Plan is delivered and reviewed. Once the selected partner is known and we see who might be hungry enough to want to earn a state’s business, there may be other, better options. It appears to me that these states believe there really is a way to obtain a no-cost contract from a vendor. If there is no demand for the use of the secondary spectrum, and not enough first responders in a state to subscribe to the network, who then gets stuck with the construction and operations funding? I am willing to bet it is not the vendor! It is always better to keep multiple options open than to be backed into a corner, especially one of your own making!

Andrew M. Seybold

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